Having regard to the observations submitted by
the respondent Government and the observations in reply submitted by
the applicant,

Having regard to the comments submitted by the
European Commission for Democracy through Law (the Venice Commission)
and the International Committee for Human Rights pursuant to Article
36 § 2 of the European Convention on Human Rights and Rule 44 § 2
of the Rules of Court,

Having regard to the parties’ oral submissions
at the hearing on 28 June 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Ruža Jeličić, is a citizen
of Bosnia and Herzegovina who was born in 1953 and lives in Banja Luka,
Bosnia and Herzegovina. She was represented successively by two lawyers,
both practising in Banja Luka: Mr D. Đurić and, following his death,
Mr P. Radulović. At the oral hearing on 28 June 2005 the applicant
was assisted by her adviser, Mr S. Nišić. The respondent Government
were represented by Ms Zikreta Ibrahimović, Agent, and Ms Monika Mijić,
Deputy Agent.

A. The circumstances of the case

The facts of the case, as submitted by the parties,
may be summarised as follows.

1. Relevant background to the present
case

From 1965 individuals were allowed to open foreign-currency
savings accounts in the former Socialist Federal Republic of Yugoslavia
(“the SFRY”). Hard-pressed for hard currency as it was, the SFRY
made it attractive for its expatriate workers and other citizens to
deposit their foreign currency with SFRY commercial banks: such deposits
earned high interest and were guaranteed by the State (section 14(3)
of the Foreign-Currency Transactions Act 1985 and section 76(1) of the
Banks and Other Financial Institutions Act 1989).

From the entry into force of the Foreign-Currency
Transactions Act 1977 until 15 October 1988, commercial banks could
re-deposit foreign currencies with the National Bank of the SFRY in
Belgrade and could obtain interest-free, national-currency loans in
return. However, such re-depositing was apparently only a paper transaction
so that a large part of foreign currency remained, in reality, with
the commercial banks. The commercial banks then used foreign currency
for payments abroad (for financing imports and foreign services for
their clients). On the other hand, foreign currency which was actually
deposited with the National Bank of the SFRY was used for paying foreign
debts of the SFRY.

Problems resulting from the foreign and domestic
debt of the SFRY caused a monetary crisis in the 1980s, with hyperinflation
in the SFRY economy. Once the banking and monetary systems were on the
verge of collapse, the SFRY took emergency measures including legislative
restrictions on the repayment of foreign-currency deposits to individuals.

While a major part of the original deposits may
have ceased to exist before or during the process of dissolution of
the SFRY and the disintegration of its banking and monetary systems,
the SFRY’s statutory guarantee for those deposits was never revoked
by it. Indeed, it was taken over by the successor States on different
dates after their respective declarations of independence.

The Republic of Bosnia and Herzegovina (the legal
predecessor of present-day Bosnia and Herzegovina) declared its independence
in March 1992. It took over the statutory guarantee of foreign-currency
deposits from the SFRY on 11 April 1992 (section 6 of the SFRY Legislation
Application Act 1992); the conditions and methods of honouring the obligations
based on this guarantee were to be regulated by a separate law. Meanwhile,
a withdrawal of foreign-currency deposits was virtually impossible.

In 1998 Bosnia and Herzegovina authorised the
Federation of Bosnia and Herzegovina and the Republika Srpska (its constituent
entities) to dispose of proceeds from the privatisation of State-owned
companies and banks located in their respective territories, making
them, at the same time, accountable for the accrued debts of those companies
and banks (section 4 of the Privatisation of Companies and Banks Framework
Act 1998). On 8 April 1998 and 8 January 2002 the Federation of Bosnia
and Herzegovina and the Republika Srpska passed legislation providing
for the transfer of the banks’ liabilities for “old” foreign-currency
savings (foreign currencies deposited before the dissolution of the
SFRY) to their respective governments on the completion of the privatisation
of their banking sectors (section 35(1) of the Opening Balance Sheets
Act 1998 of the Federation of Bosnia and Herzegovina and section 20
of the Opening Balance Sheets Act 1998 of the Republika Srpska, as amended
on 8 January 2002).

On 2 June 2004 the Agreement on Succession Issues
entered into force. Article 7 of Annex C to that Agreement stipulated
that “[g]uarantees by the SFRY or its [National Bank] of hard currency
savings deposited in a commercial bank and any of its branches in any
successor State before the date on which it proclaimed independence
shall be negotiated without delay taking into account in particular
the necessity of protecting the hard currency savings of individuals.
This negotiation shall take place under the auspices of the Bank for
International Settlements.”

In 2004 the Federation of Bosnia and Herzegovina,
the Republika Srpska and the Brčko District of Bosnia and Herzegovina
(the third constituent unit of Bosnia and Herzegovina, which was established
on 8 March 2000) undertook to settle the claims arising from “old”
foreign-currency savings by payment in cash and in State bonds (the
Settlement of Domestic Debt Acts of 2004 of the Federation of Bosnia
and Herzegovina, of the Republika Srpska and of the Brčko District
of Bosnia and Herzegovina). It would appear that payment has not yet
started.

Meanwhile, many “old” foreign-currency savings
holders (not all) are entitled to use such savings to purchase State-owned
apartments, business premises and companies. It would appear that a
small number have done so. It would also appear that Bosnia and Herzegovina
undertook to place money obtained in the privatisation and succession
processes into escrow accounts and to withdraw from those accounts only
for the clearance of domestic debt (including debt arising from “old”
foreign-currency savings) following prior consultation with the International
Monetary Fund.

A small number of individuals, including the
applicant in the present case, have obtained court judgments ordering
the release of their “old” foreign-currency savings. However, those
judgments have not been enforced for different reasons (while some periods
are covered by a statutory moratorium, the others are not).

2. The present case

On 31 January 1983 the applicant deposited a
certain amount of German marks (DEM) in two foreign-currency savings
accounts at the former Privredna banka Sarajevo Filijala Banja Luka(the
present-day Nova banjalučka banka; hereinafter referred to as “the
applicant’s bank”, “her bank” or simply “the bank”), located
in what is now the Republika Srpska. One account was an automatically
renewable three-year term savings account earning 12.5% interest a year
and the other was an ordinary savings account.

The applicant attempted to withdraw her savings
on several occasions to no avail. The bank explained to her that her
money had been re-deposited, prior to the dissolution of the SFRY, with
the National Bank of the SFRY in Belgrade.

On 3 October 1997 she brought a civil action
to recover her savings including accrued interest. On 26 November 1998
the Banja Luka Court of First Instance issued a judgment ordering the
applicant’s bank to pay to her the full sum in her accounts (DEM 300,169),
which amount included accrued interest, plus default interest and legal
costs.

On 5 February 1999 the Banja Luka Court of First
Instance mistakenly held that the bank had not appealed against the
judgment of 26 November 1998 and thus issued an order enforcing that
judgment.

On 25 February 1999 the Banja Luka Court of First
Instance established that the bank had in fact submitted an appeal against
the judgment in issue. On 4 November 1999 the Banja Luka District Court
rejected that appeal.

Meanwhile, the applicant filed an application
with the Human Rights Ombudsperson, who referred the application to
the Human Rights Chamber. The two institutions were set up by the Agreement
on Human Rights (Annex 6 to the 1995 Dayton Agreement) in order to assist
Bosnia and Herzegovina and its entities in honouring their obligations
under that Agreement, namely to secure to all persons within their jurisdiction
the highest level of internationally recognised human rights (including
those provided in the European Convention on Human Rights – “the
Convention”).

On 12 January 2000 the Human Rights Chamber found
a violation of Article 6 of the Convention and of Article 1 of Protocol
No. 1 to the Convention arising from a failure to enforce the judgment
of 26 November 1998. The Human Rights Chamber held the Republika Srpska
responsible and ordered it to ensure full enforcement without further
delay.

On 22 March 2000 the Banja Luka Court of First
Instance issued a fresh enforcement order.

On 28 July 2000 the Republika Srpska Supreme
Court rejected a further appeal by the applicant’s bank.

On 8 November 2000 the Republika Srpska Payment
Bureau refused to enforce the judgment relying on the Foreign-Currency
Transactions Act 1996, the Opening Balance Sheets Act 1998 and the Instruction
of the Republika Srpska Government of 4 October 1999.

On 31 December 2001 the balance in the applicant’s
bank account was 149,319.55 euros (EUR).

On 18 January 2002 the privatisation of the applicant’s
bank was completed and the applicant’s foreign-currency deposit became
a public debt of the Republika Srpska pursuant to section 20 of the
Opening Balance Sheets Act 1998, as amended on 8 January 2002.

On 7 March 2002 the applicant apparently converted
a part of her savings (EUR 10,225.84) into privatisation coupons and
sold those coupons on the secondary market pursuant to the Privatisation
of Companies Act 1998. She claimed to have received EUR 4,400. She also
claimed to have converted, on an unspecified date, DEM 60,000 (approximately
EUR 30,000) into coupons, which she sold on the secondary market for
approximately EUR 12,000.

B. Relevant international and domestic law
and practice

1. Legislation of the former Socialist
Federal Republic of Yugoslavia (“the SFRY”)

This Act was in force until 1 January 1986. Section
51(2) provided as follows:

“The National Bank of the SFRY shall be bound,
at the request of an authorised bank, to accept citizens’ foreign-currency
deposits held in accounts at such authorised bank, and at the same time
to grant the authorised bank an interest-free credit in the amount of
the dinar counter-value of the foreign currency deposited.”

This SFRY Act was in force in the Republic of
Bosnia and Herzegovina (the legal predecessor of present-day Bosnia
and Herzegovina) until 11 April 1992. The following were the relevant
provisions:

Section 14, as read until 21 December
1990

“1. Domestic nationals and legal persons may
keep foreign currency in a foreign-currency ordinary or savings account
at an authorised bank and use it for making payments abroad, in accordance
with the provisions of this Act.

2. Foreign nationals may keep foreign currency
in a foreign-currency ordinary or savings account at an authorised bank.

3. Foreign currency in foreign-currency ordinary
or savings accounts shall be guaranteed by the SFRY.”

Section 14, as amended on 21 December
1990

“1. Domestic nationals may keep foreign currency
in a foreign-currency ordinary or savings account at an authorised bank
and use them for making payments abroad, in accordance with the provisions
of this Act.

2. Foreign nationals may keep foreign currency
in a foreign-currency ordinary or savings account at an authorised bank.

3. Foreign currency in foreign-currency ordinary
or savings accounts shall be guaranteed by the SFRY.

4. The conditions and procedure applicable to
the obligations arising under the guarantee shall be regulated by a
separate SFRY law.”

Section 71, as amended on 21 December
1990

“1. Domestic nationals may ... deposit convertible
currencies in a foreign-currency ordinary or savings account at an authorised
bank.

2. Foreign currency kept in foreign-currency ordinary
or savings accounts may be used by domestic nationals to pay for imported
goods or services for their own and close relatives’ needs, in accordance
with the legislation concerning foreign trade.

...

4. Foreign currency referred to in paragraph 2
of this section may be used by domestic nationals for the purchase of
foreign-currency bonds, to make testamentary gifts for scientific or
humanitarian purposes in the SFRY or to pay for life insurance with
an insurance company in the SFRY.

5. The National Bank of the SFRY shall regulate
the operation of the foreign-currency ordinary or savings accounts of
domestic and foreign nationals.”

Section 103, as read until 15 October
1988

“1. The National Bank of the SFRY shall, on
request by an authorised bank, accept in its deposit foreign currency
that has been deposited by domestic and foreign nationals in foreign-currency
ordinary or savings accounts after the entry into force of this Act.

2. The procedure for depositing foreign currency
with or withdrawing foreign currency from the National Bank of the SFRY
and the conditions under which such deposits or withdrawals may be made
shall be regulated by the Federal Executive Council in accordance with
the recommendations of the National Bank of the SFRY.”

Section 103, as amended on 15 October
1988 and on 21 December 1990

“Banks approved to engage in foreign-trade
transactions may retain foreign currency ... in overseas accounts or
sell it to the National Bank of the SFRY or on the single monetary market
with a right of redemption at the exchange rate applicable at the date
of purchase.”

(d) 1985 Decision on the procedure to be followed
when depositing foreign currency with or withdrawing foreign currency
from the National Bank of the SFRY and the conditions under which such
deposits or withdrawals may be made (Odluka o načinu i uslovima deponovanja i vraćanja deviza građana
iz depozita Narodne banke Jugoslavije;published in OG SFRY no. 73/85)

Section 5 provided as follows:

“1. By reference to the deposited foreign currency
... the National Bank shall authorise credits to the banks in dinars
in an amount equal to the deposited foreign currency, which shall be
established on the basis of the average daily exchange rate applicable
at the end of the month in which the foreign currency is deposited.

2. When withdrawing foreign currency on deposit,
the bank shall repay the National Bank the used dinar credits in an
amount equal to the amount of foreign currency withdrawn from deposit,
which amount shall be established on the basis of the exchange rate
applicable when the foreign currency was deposited.”

This Act entered in force on 11 April 1992. Pursuant
to sections 1 and 6, the Republic of Bosnia and Herzegovina took over, inter alia,
the Banks and Other Financial Institutions Act 1989 mentioned above
and the financial rights and obligations of the former SFRY stemming
from that Act.

“Conditions and methods for repayment of credits
used by authorised banks on the basis of foreign currency deposited
with the National Bank of the SFRY prior to the entry into force of
this Act and for return of the foreign currency from the deposit at
the National Bank of the SFRY shall be regulated by separate legislation.”

Section 7 of this decision provided that the
issue of foreign-currency savings deposited with the National Bank of
the SFRY, including the interest on these savings, “shall be resolved
by the enactment of legislation concerning the public debt of Bosnia
and Herzegovina or in another way within the overall consolidation of
the public debt of Bosnia and Herzegovina and in consultation with the
international community”.

3. Resolution 93 (6) of the Committee
of Ministers of the Council of Europe on the Control of Respect for
Human Rights in European States not yet Members of the Council of Europe,
adopted on 9 March 1993

The Resolution reads as follows:

“The Committee of Ministers of the Council
of Europe,

Acting under the Statute of the Council of Europe
signed in London on 5 May 1949;

Having regard to the European Convention on the
Protection of Human Rights and Fundamental Freedoms of 4 November 1950
and the Protocols thereto;

Considering that it is desirable that all European
states become members of the Council of Europe and Parties to the European
Convention on Human Rights and the Protocols thereto;

Wishing to make arrangements under which the
Council of Europe can contribute to the setting up by European states
which are not yet members of the Council of Europe and which so desire,
as a transitional measure, within their internal legal system, of a
body responsible for the control of respect for human rights that takes
into account the substantive provisions of the European Convention of
Human Rights;

Considering that the establishment of a transitional
human rights control mechanism drawing on the competence and experience
of the control organs of the European Convention on Human Rights might
promote the process of accession to the Council of Europe;

Having consulted the European Court and Commission
of Human Rights which have both indicated their agreement,

Resolves to contribute towards the control of
respect for human rights in European non-member states, in accordance
with the following principles:

Article 1

At the request of a European non-member state,
the Committee of Ministers may, after consultation with the European
Court and Commission of Human Rights, appoint specially qualified persons
to sit on a court or other body responsible for the control of respect
for human rights set up by this state within its internal legal system
(hereafter called the ‘control body’).

Article 2

The number of members of the control body set
up by the requesting state shall be such that the number of members
appointed by virtue of this resolution will be greater than the number
of other members.

Article 3

The law applicable by the control body shall
include the substantive provisions of the European Convention on Human
Rights.

Article 4

Practical arrangements concerning the participation
described in Article 1 shall be specified in an agreement concluded
by the Secretary General of the Council of Europe with the requesting
state on behalf of the Committee of Ministers.

Article 5

The arrangements under this resolution shall
cease once the requesting state has become a member of the Council of
Europe except as otherwise agreed between the Council of Europe and
the state concerned.”

4. The 1995 General Framework Agreement
for Peace in Bosnia and Herzegovina (“the Dayton Agreement”)

Three principal parties to the 1992-95 war in
Bosnia and Herzegovina (the then Republic of Bosnia and Herzegovina,
the Republic of Croatia and the then Federal Republic of Yugoslavia)
signed the Dayton Agreement on 14 December 1995. It entered into force
on the same day. There are twelve Annexes to the Agreement, including
the Constitution of Bosnia and Herzegovina (Annex 4) and the Agreement
on Human Rights (Annex 6).

(a) Constitution of Bosnia and Herzegovina
(Annex 4 to the Dayton Agreement)

The
Constitution entered into force on 14 December 1995. Declarations on
behalf of the then Republic of Bosnia and Herzegovina, the Federation
of Bosnia and Herzegovina and the Republika Srpska approving the Constitution
were attached to it. The following are its relevant provisions:

Article I § 1

“The Republic of Bosnia and Herzegovina, the
official name of which shall henceforth be ‘Bosnia and Herzegovina’,
shall continue its legal existence under international law as a state,
with its internal structure modified as provided herein and with its
present internationally recognized borders...”

Article I § 3

“Bosnia and Herzegovina shall consist of the
two Entities, the Federation of Bosnia and Herzegovina and the Republika
Srpska.”

Article II § 1

“Bosnia and Herzegovina and both Entities shall
ensure the highest level of internationally recognized human rights
and fundamental freedoms. To that end, there shall be a Human Rights
Commission for Bosnia and Herzegovina as provided for in Annex 6 to
the [Dayton] Agreement.”

Article II § 2

“The rights and freedoms set forth in the European
Convention for the Protection of Human Rights and Fundamental Freedoms
and its Protocols shall apply directly in Bosnia and Herzegovina. These
shall have priority over all other law.”

Article II § 6

“Bosnia and Herzegovina, and all courts, agencies,
governmental organs, and instrumentalities operated by or within the
Entities, shall apply and conform to the human rights and fundamental
freedoms referred to in [Article II § 2 above].”

Article II § 8 provides that all competent authorities in Bosnia
and Herzegovina will cooperate with, and provide unrestricted access
to, the European Court of Human Rights and the other supervisory bodies
established by any of the numerous international agreements listed in
Annex I to the Constitution.

Article III § 2 (b)

“Each Entity shall provide all necessary assistance
to the government of Bosnia and Herzegovina in order to enable it to
honor the international obligations of Bosnia and Herzegovina...”

Article III § 3 (b)

“The Entities and any subdivisions thereof
shall comply fully with this Constitution, which supersedes inconsistent
provisions of the law of Bosnia and Herzegovina and of the constitutions
and law of the Entities, and with the decisions of the institutions
of Bosnia and Herzegovina. The general principles of international law
shall be an integral part of the law of Bosnia and Herzegovina and the
Entities.”

Article VI § 3

“The Constitutional Court shall uphold this
Constitution.

a. The Constitutional Court shall have exclusive
jurisdiction to decide any dispute that arises under this Constitution
between the Entities or between Bosnia and Herzegovina and an Entity
or Entities, or between institutions of Bosnia and Herzegovina, including
but not limited to:

– Whether an Entity’s decision to
establish a special parallel relationship with a neighboring state is
consistent with this Constitution, including provisions concerning the
sovereignty and territorial integrity of Bosnia and Herzegovina.

– Whether any provision of an Entity’s
constitution or law is consistent with this Constitution.

Disputes may be referred only by a member of
the Presidency, by the Chair of the Council of Ministers, by the Chair
or a Deputy Chair of either chamber of the Parliamentary Assembly, by
one-fourth of the members of either chamber of the Parliamentary Assembly,
or by one-fourth of either chamber of a legislature of an Entity.

b. The Constitutional Court shall also have appellate
jurisdiction over issues under this Constitution arising out of a judgment
of any other court in Bosnia and Herzegovina.

c. The Constitutional Court shall have jurisdiction
over issues referred by any court in Bosnia and Herzegovina concerning
whether a law, on whose validity its decision depends, is compatible
with this Constitution, with the European Convention for Human Rights
and Fundamental Freedoms and its Protocols, or with the laws of Bosnia
and Herzegovina; or concerning the existence of or the scope of a general
rule of public international law pertinent to the court’s decision.”

Article VI § 4

“Decisions of the Constitutional Court shall
be final and binding.”

(b) Jurisprudence of the Constitutional Court
of Bosnia and Herzegovina

On 26 February 1999 the Constitutional Court
adopted its decision in case no. U 7/98. The following is the relevant
part:

“...According to Article VI.3 (b) of the Constitution
of Bosnia and Herzegovina, the Constitutional Court of Bosnia and Herzegovina
(hereinafter: the Constitutional Court) has jurisdiction over issues
under this Constitution arising out of a judgment of any other court
in Bosnia and Herzegovina. Article II of the Constitution of Bosnia
and Herzegovina deals with the protection of human rights and fundamental
freedoms in Bosnia and Herzegovina. In particular, Article II.2 provides
that the rights set forth in the European Convention for the Protection
of Human Rights and Fundamental Freedoms (hereinafter: the European
Convention) and its Protocols shall apply directly in Bosnia and Herzegovina
and have priority over all other law. Moreover, Article II.3 specifies
various human rights which shall be enjoyed by all persons within the
territory of Bosnia and Herzegovina. It follows that issues of protection
of human rights fall, in principle, within the Constitutional Court’s
jurisdiction, and that the Constitutional Court has the competence,
under Article VI.3 (b) of the Constitution of Bosnia and Herzegovina,
to decide over such matters on appeals against decisions of other courts.

However, Article II.1 of the Constitution of
Bosnia and Herzegovina also provides that, in order to ensure the highest
level of internationally protected human rights and fundamental freedoms,
there shall be a Human Rights Commission for Bosnia and Herzegovina
as provided for in Annex 6 to the General Framework Agreement for Peace
in Bosnia and Herzegovina. Since the Constitution of Bosnia and Herzegovina
specifically refers to that Commission and to the provisions contained
in the Agreement on Human Rights, which is Annex 6 to the General Framework
Agreement, the provisions of the Agreement on Human Rights must be considered
as recognized by the Constitution of Bosnia and Herzegovina itself as
being part of the whole system of protection of human rights and fundamental
freedoms in Bosnia and Herzegovina.

Moreover, it is significant that the Constitution
of Bosnia and Herzegovina and the Agreement on Human Rights were adopted
at the same time, on 14 December 1995, as Annexes to the General Framework
Agreement for Peace in Bosnia and Herzegovina. The provisions of these
two Annexes should therefore be considered to supplement each other,
and in view of the link between these two Annexes, it can be concluded
with certainty that the rules contained in the Agreement on Human Rights
cannot be contrary to the Constitution of Bosnia and Herzegovina.

The Agreement on Human Rights provides in its
Article VIII that the Human Rights Chamber shall have jurisdiction to
examine questions of alleged human rights violations, subject to the
conditions set out in that Article.

It is thus clear that human rights issues fall
under the jurisdiction of both the Constitutional Court and the Human
Rights Chamber. There is no mention in the Constitution of Bosnia and
Herzegovina or in any other law of a specific hierarchy or other relationship
between the Constitutional Court and the Human Rights Chamber. The question
therefore arises whether, despite the absence of any express rules,
such a hierarchy or relationship should be considered to exist and,
in particular, whether one of these institutions should be considered
competent to review the decisions of the other concerning human rights
issues. This question already arose in Cases No. U 3/98 and U 4/98,
but in its decisions in those cases, adopted on 5 June 1998, the Constitutional
Court did not find it necessary to resolve the question, since the appeals
had to be rejected for other reasons.

The appellate jurisdiction of the Constitutional
Court is based on Article VI.3 (b) of the Constitution of Bosnia and
Herzegovina, which provides for such jurisdiction in regard to ‘a
judgment of any other court in Bosnia and Herzegovina’.

Although the Human Rights Chamber exercises its
judicial functions with respect to alleged violations of human rights
in Bosnia and Herzegovina, the Human Rights Chamber is an institution
of a special nature. According to Article II.1 of the Agreement on Human
Rights, the Human Rights Chamber is one of the two parts of the Commission
on Human Rights for Bosnia and Herzegovina. According to Article XIV
of the Agreement on Human Rights, the Commission on Human Rights will
only function in its present form during a transitional five-year period,
unless the Parties to the Agreement agree otherwise. In the legal terminology
of the Agreement on Human Rights, the Human Rights Chamber is neither
a court nor an institution of Bosnia and Herzegovina. Indeed, Article
XIV of the Agreement specifically refers to the transfer of responsibility
to ‘the institutions of Bosnia and Herzegovina’.

It is significant that the Constitution of Bosnia
and Herzegovina refers to the concept of a ‘court in Bosnia and Herzegovina’
not only in Article VI.3 (b) but also in Article VI.3 (c). The latter
provision provides for the jurisdiction of the Constitutional Court
over issues referred by any court in Bosnia and Herzegovina concerning
whether a law, on whose validity its decision depends, is compatible,
in particular, with this Constitution or the European Convention and
its Protocols. It is quite certain that the authors of this provision
did not intend the Human Rights Chamber to be included among those institutions
which should be competent to refer human rights issues to the Constitutional
Court for preliminary consideration.

It is also important to take into account certain
provisions in the Constitution of Bosnia and Herzegovina and the Agreement
on Human Rights which regulate the legal effects of the decisions of
the Constitutional Court and the Human Rights Chamber. According to
Article VI.4 of the Constitution of Bosnia and Herzegovina, the decisions
of the Constitutional Court shall be final and binding. Similarly, Article
XI.3 of the Agreement on Human Rights does not provide for any reviews
of the decisions of the Human Rights Chamber, except in some cases by
the Human Rights Chamber itself; they are thus final and binding. As
these two provisions were adopted at the same time, the correct interpretation
must be that the authors did not intend to give either one of these
institutions the competence to review the decisions of the other, but
rather considered that, in regard to human rights issues, the Constitutional
Court and the Human Rights Chamber should function as parallel institutions,
neither of them being competent to interfere in the work of the other
and it being left in some cases to the discretion of applicants to make
a choice between these alternative remedies.

It is true that such a system could result in
conflicting jurisprudences concerning some human rights issues. It may
also have the disadvantage of creating a dilemma for the individuals
whether to appeal to the Constitutional Court or to bring a case before
the Commission on Human Rights. This, however, is a consequence of the
system created by the Constitution of Bosnia and Herzegovina and the
Agreement on Human Rights. Moreover, the dilemmas that might arise are
mostly of a temporary nature, since the responsibility for the operation
of the Commission on Human Rights will be transferred, after the initial
transitional period, to the institutions of Bosnia and Herzegovina dealing
with human rights, unless the Parties to the Agreement agree otherwise.

It thus follows that the Constitutional Court
has no jurisdiction in the present case and that the appeal must be
rejected...”

(c) Agreement on Human Rights (Annex 6 to the
Dayton Agreement)

The
Agreement on Human Rights was signed by the Republic of Bosnia and Herzegovina,
the Federation of Bosnia and Herzegovina and the Republika Srpska on
14 December 1995, when it entered into force. The following are the
relevant provisions:

Article I

“The Parties shall secure to all persons within
their jurisdiction the highest level of internationally recognized human
rights and fundamental freedoms, including the rights and freedoms provided
in the European Convention for the Protection of Human Rights and Fundamental
Freedoms and its Protocols and the other international agreements listed
in the Appendix to this Annex...”

Article II

“1. To assist in honoring their obligations
under this Agreement, the Parties hereby establish a Commission on Human
Rights (the ‘Commission’). The Commission shall consist of two parts:
the Office of the Ombudsman and the Human Rights Chamber.

2. The Office of the Ombudsman and the Human
Rights Chamber shall consider, as subsequently described:

a. alleged or apparent violations of
human rights as provided in the European Convention for the Protection
of Human Rights and Fundamental Freedoms and the Protocols thereto,
or

b. alleged or apparent discrimination
on any ground such as sex, race, color, language, religion, political
or other opinion, national or social origin, association with a national
minority, property, birth or other status arising in the enjoyment of
any of the rights and freedoms provided for in the international agreements
listed in the Appendix to this Annex, where such violation is alleged
or appears to have been committed by the Parties, including by any official
or organ of the Parties, Cantons, Municipalities, or any individual
acting under the authority of such official or organ.

3. The Parties recognise the right of all persons
to submit to the Commission and to other human rights bodies applications
concerning alleged violations of human rights, in accordance with the
procedures of this Annex and such bodies. The Parties shall not undertake
any punitive action directed against persons who intend to submit, or
have submitted, such allegations.”

Article III

“...

2. The salaries and expenses of the Commission
and its staff ... shall be borne by Bosnia and Herzegovina...

...

4. The Ombudsman and all members of the Chamber
shall not be held criminally or civilly liable for any acts carried
out within the scope of their duties. When the Ombudsman and members
of the Chamber are not citizens of Bosnia and Herzegovina, they and
their families shall be accorded the same privileges and immunities
as are enjoyed by diplomatic agents and their families under the Vienna
Convention on Diplomatic Relations.

5. With full regard for the need to maintain
impartiality, the Commission may receive assistance as it deems appropriate
from any governmental, international, or non-governmental organization.”

Article VII §§ 1 and 2

“1. The Human Rights Chamber shall be composed
of fourteen members.

2. Within 90 days after this Agreement enters
into force, the Federation of Bosnia and Herzegovina shall appoint four
members and the Republika Srpska shall appoint two members. The Committee
of Ministers of the Council of Europe, pursuant to its Resolution (93)
6, after consultation with the Parties, shall appoint the remaining
members, who shall not be citizens of Bosnia and Herzegovina or any
neighboring state, and shall designate one such member as the President
of the Chamber.”

Article VIII

“1. The Chamber shall receive by referral from
the Ombudsman on behalf of an applicant, or directly from any Party
or person, non-governmental organisation, or group of individuals claiming
to be the victim of a violation by any Party or acting on behalf of
alleged victims who are deceased or missing, for resolution or decision
applications concerning alleged or apparent violations of human rights
within the scope of paragraph 2 of Article II.

2. The Chamber shall decide which applications
to accept and in what priority to address them. In so doing, the Chamber
shall take into account the following criteria:

a. Whether effective remedies exist,
and the applicant has demonstrated that they have been exhausted and
that the application has been filed with the Commission within six months
from such date on which the final decision was taken.

b. The Chamber shall not address any
application which is substantially the same as a matter which has already
been examined by the Chamber or has already been submitted to another
procedure of international investigation or settlement.

c. The Chamber shall also dismiss any
application which it considers incompatible with this Agreement, manifestly
ill-founded, or an abuse of the right of petition.

d. The Chamber may reject or defer further
consideration if the application concerns a matter currently pending
before any other international human rights body responsible for the
adjudication of applications or the decision of cases, or any other
Commission established by the Annexes to the [Dayton] Agreement.

e. In principle, the Chamber shall endeavor
to accept and to give particular priority to allegations of especially
severe or systematic violations and those founded on alleged discrimination
on prohibited grounds.

f. Applications which entail requests
for provisional measures shall be reviewed as a matter of priority in
order to determine (1) whether they should be accepted and, if so (2)
whether high priority for the scheduling of proceedings on the provisional
measures request is warranted.

3. The Chamber may decide at any point in its
proceedings to suspend consideration of, reject or strike out, an application
on the ground that (a) the applicant does not intend to pursue his application;
(b) the matter has been resolved; or (c) for any other reason established
by the Chamber, it is no longer justified to continue the examination
of the application; provided that such result is consistent with the
objective of respect for human rights.”

Article XI

“1. Following the conclusion of the proceedings,
the Chamber shall promptly issue a decision, which shall address:

a. Whether the facts found indicate a
breach by the Party concerned of its obligations under this Agreement;
and if so

b. What steps shall be taken by the Party
to remedy such breach, including orders to cease and desist, monetary
relief (including pecuniary and non-pecuniary injuries), and provisional
measures.

...

3. Subject to review [by the full Chamber of
a panel’s decision], the decisions of the Chamber shall be final and
binding.

...

5. The Chamber shall issue reasons for its decisions.
Its decisions shall be published and forwarded to the parties concerned,
the High Representative described in Annex 10 to the [Dayton] Agreement
while such office exists, the Secretary General of the Council of Europe
and the OSCE.

6. The Parties shall implement fully decisions
of the Chamber.”

Article XIV

“Five years after this Agreement enters into
force, the responsibility for the continued operation of the Commission
shall transfer from the Parties to the institutions of Bosnia and Herzegovina,
unless the Parties otherwise agree. In the latter case, the Commission
shall continue to operate as provided above.”

On
10 November 2000 the Parties to the Agreement on Human Rights extended
the mandate of the Human Rights Chamber until 31 December 2003. Pursuant
to their agreement of 25 September 2003 the Human Rights Commission
within the Constitutional Court of Bosnia and Herzegovina was created
with a mandate to decide on cases received by the Human Rights Chamber
until 31 December 2003.

5. The 2000 Statute of the Brčko District
of Bosnia and Herzegovina

This Statute entered into force on 8 March 2000.
The following are its relevant provisions:

Article 1 §§ 1 and 2

“The Brčko District (hereinafter the ‘District’)
is a single administrative unit of local self-government existing under
the sovereignty of Bosnia and Herzegovina.

The District derives its powers of local self-government
by virtue of each Entity having delegated all of its powers of governance
as previously exercised by the two Entities and the three municipal
governments within the pre-war Opština, as defined in Article 5 [below],
to the District Government.”

Article 5

“The territory of the District encompasses
the complete territory of the Brčko Municipality with the boundaries
as of 1 January 1991.”

Article 71 § 2

“The Brcko District of Bosnia and Herzegovina
is the legal successor to the Republika Srpska Brčko Municipality as
well as to the administrative arrangements of Brka and Ravne-Brčko.”

This Agreement was concluded by Bosnia and Herzegovina,
the Republic of Croatia, the then Federal Republic of Yugoslavia (now
Serbia and Montenegro), the former Yugoslav Republic of Macedonia and
the Republic of Slovenia as successor States to the SFRY. It entered
into force on 2 June 2004. Annex C to that Agreement regulates the matter
of the financial assets and liabilities of the SFRY. Article 7 of this
Agreement provides as follows:

“Guarantees by the SFRY or its [National Bank]
of hard currency savings deposited in a commercial bank and any of its
branches in any successor State before the date on which it proclaimed
independence shall be negotiated without delay taking into account in
particular the necessity of protecting the hard currency savings of
individuals. This negotiation shall take place under the auspices of
the Bank for International Settlements.”

7. Legislation of Bosnia and Herzegovina

(a) Privatisation of Companies and Banks Framework
Act 1998 (Okvirni zakon o privatizaciji preduzeća i banaka u Bosni i Hercegovini;published
in the Official Gazette of Bosnia and Herzegovina (“OG BH”) nos.
14/98 of 27 July 1998 and 12/99 of 2 August 1999; amendments published
in OG BH nos. 14/00 of 22 May 2000 and 16/02 of 11 July 2002)

This Act has been in force since 4 August 1998.
The relevant provisions read as follows:

Section 2(1)

“In accordance with the [Dayton Agreement], this Act expressly recognises
the right of the Entities to privatise non-privately owned companies
and banks located on their territory...”

Section 4

“1. Proceeds from the privatisation of companies and banks located
in the territory of one Entity shall be at the disposal of that Entity
or the legal persons authorised to receive them under the laws of that
Entity.

2. Claims against companies and banks to be privatised shall be deemed
as a liability of the privatising Entity.”

(b) Criminal Code 2003 (Krivični zakon Bosne i Hercegovine; published in OG BH nos.
3/03 of 10 February 2003 and 37/03 of 22 November 2003; amendments published
in OG BH nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004 and
61/04 of 29 December 2004)

This Code has been in force since 1 March 2003.
Article 239 of this Code reads as follows:

“An official person in the institutions of
Bosnia and Herzegovina, institutions of the entities and institutions
of the Brčko District of Bosnia and Herzegovina, who refuses to enforce
a final and enforceable decision of the Constitutional Court of Bosnia
and Herzegovina or Court of Bosnia and Herzegovina or Human Rights Chamber
of Bosnia and Herzegovina, or if he prevents enforcement of such a decision,
or if he frustrates the enforcement of the decision in some other way,
shall be punished by imprisonment for a term between six months and
five years.”

This Act was in force from 6 January 2004 until
31 March 2004. It postponed the payment of claims arising from court
and administrative decisions against Bosnia and Herzegovina and from
international obligations of Bosnia and Herzegovina which concerned, inter alia,
the “old” foreign-currency deposits (sections 1 and 2).

8. Laws of the Republika Srpska

(a) Constitution of the Republika Srpska

The following are its relevant provisions:

Article 1

“...The Republika Srpska is one of the two
equal entities of Bosnia and Herzegovina.

Serbs, Bosniacs, Croats (as constituent peoples),
Others and citizens shall participate in the exercise of public authority
in the Republika Srpska on an equal basis and without discrimination.”

Article 3

“The Republika Srpska has all competence which
was not expressly transferred by the Constitution of Bosnia and Herzegovina
to the latter’s institutions.”

Article 5

“The constitutional order of the Republika
Srpska shall be based on:

– guaranteeing and protection of human
rights and freedoms in accordance with international standards...”

Article 66

“The rights and duties of the Republika Srpska
shall be exercised by the organs specified in its Constitution.

The powers and responsibilities of the Republika
Srpska authorities shall be based on and delimited by human rights and
freedoms...”

Pursuant to Article 115, the Constitutional Court
of the Republika Srpska is competent, inter alia, to decide on conformity of the laws of the Republika
Srpska with its Constitution. However, unlike the Constitutional Court
of Bosnia and Herzegovina, the Constitutional Court of the Republika
Srpska is not competent to decide upon individual human-rights applications.

Article 120, in so far as relevant, reads:

“...Anyone may lodge a petition with the Constitutional
Court to initiate the constitutionality and legality review procedure.

The President of the Republic, the National Assembly
and the Government may initiate the review procedure before the Constitutional
Court without restriction, while other bodies, organisations and communities
may do so under conditions prescribed by law.

The Constitutional Court may initiate the constitutionality
and legality review procedure of its own motion.

When the Constitutional Court considers a law
not to be in accordance with the Constitution, or that another regulation
or general enactment is not in accordance with the Constitution or law,
such law, regulation or general enactment shall cease to have effect
on the day of the publication of the Constitutional Court’s decision.”

(b) Foreign-Currency Transactions Act 1996
(Zakon
o deviznom poslovanju;published in the Official Gazette of the Republika Srpska
(“OG RS”) no. 15/96 of 8 July 1996; amendments published in OG RS
no. 10/97 of 30 April 1997)

This Act was in force from 16 July 1996 until
2 December 2003. The following were the relevant provisions:

“The authorised bank shall guarantee foreign
currency in foreign-currency ordinary and savings accounts with all
of its assets.”

Section 62

“The authorised bank shall assess and pay interest
on foreign-currency deposits in foreign currency or, upon the request
of a domestic or foreign national, in new dinars.”

Section 63

“Domestic and foreign nationals may withdraw
foreign currency from their foreign-currency ordinary or savings accounts.

Domestic and foreign nationals may sell their
claims arising from foreign currency deposited on their foreign-currency
ordinary or savings accounts to a domestic or foreign national or legal
person through an authorised bank.”

Section 135(1)

“The State shall guarantee, pursuant to this
and other Republika Srpska legislation, foreign currency deposited prior
to the entry into force of this Act on foreign-currency ordinary and
savings accounts at an authorised bank.”

Section 136

“The authorised bank shall pay interest on
foreign-currency deposits referred to in section 135(1) of this Act
to a domestic national in dinars or, upon his or her request, in foreign
currency and to a foreign national in foreign currency or, upon his
or her request, in dinars.”

Section 137a

“Sections 62 and 63 of this Act shall not apply
to foreign-currency savings deposited at commercial banks located in
the Republika Srpska prior to 6 April 1992.

The manner of payment to and compensation of
those old foreign-currency savers shall be regulated by special legislation.”

On 4 and 5 December 2001 the Constitutional Court
of the Republika Srpska declared section 137a of the Foreign-Currency
Transactions Act 1996 void as from 16 January 2002 because it treated
unequally the “old” foreign-currency savers and the savers who had
deposited foreign currencies after 6 April 1992 and, in addition, because
it imposed restrictions on the use of private property without providing
just compensation.

This Act has been in force since 23 July 1998.
Section 20, as amended on 8 January 2002, provides that banks’ liability
for foreign currencies deposited prior to 31 December 1991 will shift
to the Finance Ministry of the Republika Srpska upon the completion
of privatisation.

(d) Privatisation of Companies Act 1998 (Zakon o privatizaciji
državnog kapitala u preduzećima; published in OG RS no. 24/98
of 15 July 1998; amendments published in OG RS no. 62/02 of 7 October
2002, 38/03 of 30 May 2003 and 65/03 of 11 August 2003)

This Act has been in force since 23 July 1998.
The following are the relevant provisions:

Section 19(1) and (2), as amended on
19 August 2003

“A person who has ‘old’ foreign-currency savings in a bank located
in the Republika Srpska and who is a citizen of the Republika Srpska
at the date of the entry into force of this Act shall be entitled to
coupons for the purchase of shares pursuant to this Act.

A person who is entitled to coupons in accordance with this section
may decide to convert into coupons his or her entire savings or a part
thereof.”

Under sections 22(2) and 25(3), coupons may be
sold and a conversion of “old” foreign-currency savings into coupons
is irrevocable.

(e) 1999 Instruction of the Republika Srpska
Government (Zaključak; published in OG RS no. 24/99 of 4 October 1999)

This Instruction entered into force on 19 August
1999. The Republika Srpska Government instructed the Ministry of Justice
to challenge in the courts all judgments ordering reimbursement of the
“old” foreign-currency savings. In the meantime, the enforcement
of such judgments was suspended.

On 14 September 2001 the Constitutional Court
of the Republika Srpska declared the Instruction void as from 2 November
2001 because the Government, by suspending the enforcement of judgments,
had acted outside its competence and had interfered with that of the
judiciary.

This Act was in force from 28 May 2002 until
29 December 2003. It postponed the enforcement of all court decisions
which had been delivered prior to its entry into force and which concerned, inter alia,
the “old” foreign-currency savings (that is,savings deposited at banks located in the Republika Srpska
prior to 31 December 1991) (sections 1 and 2 of the Act).

This Act has been in force since 2 December 2003
(it replaced the Foreign-Currency Transactions Act 1996 cited above).
Section 64 of this Act, in so far as relevant, reads:

“Methods for the repayment of debts arising from old foreign-currency
savings ... which were transferred to the Republika Srpska pursuant
to the Opening Balance Sheets Act 1998 shall be regulated by special
legislation.”

This Act was in force from 29 December 2003 until
23 July 2004. It postponed, inter alia, the settlement of the claims arising from foreign-currency
savings deposited at banks located in the Republika Srpska prior to
31 December 1991 (sections 1 and 2 of the Act).

b. Debt arising out of foreign-currency savings deposited at banks
located in what is now the Republika Srpska prior to 31 December 1991
(hereinafter ‘old foreign-currency savings’) totalling 774,900,000
Bosnian markas2.”

Section 11

“Old foreign-currency savings are foreign-currency savings as at 31
December 1991 in banks’ branch offices located in what is now the
Republika Srpska, reduced by an amount transferred to special accounts
for the purposes of purchasing shares, apartments and other State-owned
items, and also by any amount paid until the deadline set in section
12 of this Act expires, but in any case not exceeding 774,900,000 Bosnian
markas.

Old foreign-currency savings referred to in the first paragraph of
this section do not include foreign-currency savings deposited in branch
offices of Ljubljanska banka and Invest bankalocated in what is now the Republika Srpska,
which shall be dealt with in the succession process.”

Section 12

“The Government of the Republika Srpska shall within 90 days from the
entry into force of this Act further regulate the conditions, procedure
and deadlines for the verification of the liabilities referred to in
section 11 of this Act.

The liabilities arising out of old foreign-currency savings referred
to in section 11 of this Act shall be converted into Bosnian markas
at the official exchange rate set by the Central Bank of Bosnia and
Herzegovina as applicable on 31 August 2004.”

Section 13

“Interest earned after 1 January 1992 which was not paid or disposed
of in any other manner shall be written off in its entirety and shall
not constitute a liability of the Republika Srpska.

Liabilities arising out of old foreign-currency savings which were
not verified pursuant to section 12 of this Act shall be written off
and shall not constitute a liability of the Republika Srpska.

If liabilities verified pursuant to section 12 of this Act exceed
[774,900,000 Bosnian markas], the difference shall be written off by
a proportionate reduction of individual liabilities and shall not constitute
a liability of the Republika Srpska.”

Section 14

“Debt referred to in section 11 of this Act shall be settled by cash
and State bonds.”

Section 15

“Old foreign-currency savings holders with up to 100 Bosnian markas3 shall
be reimbursed in cash, upon the verification of their savings, up to
a total amount of 16,000,000 Bosnian markas.

...

Old foreign-currency savings holders with up to 1,000 Bosnian markas4 shall
be reimbursed in cash up to a total amount of 39,100,000 Bosnian markas.

Old foreign-currency savings holders referred to in [the previous]
paragraph shall be reimbursed within a period of 4 years from the 2004
tax year.

...”

Section 16

“The remaining sum of 719,800,000 Bosnian markas shall be reimbursed
in treasury bonds on the following conditions:

a. bonds shall become due within 30 years;

b. bonds shall be bought out in 10 equivalent annual payments starting
nine years before becoming due; and

c. bonds shall earn no interest.”

Section 17

“Bonds issued for the purposes of the settlement of the Republika Srpska’s
domestic debt may not be used in the privatisation process. Until old
foreign-currency savings are converted into bonds, they may be used
in the privatisation process in accordance with the privatisation legislation.”

Section 22(4)

“Bonds referred to in this Act ... shall be transferable without
restrictions ...”

9. Status of the applicant’s bank

The present-day Nova banjalučka banka has undergone
significant changes since 1983, when the applicant deposited her money.
In 1983 it was a branch (filijala) of the State-owned Privredna banka Sarajevo. In 1987
its name was changed to Privredna banka Sarajevo Osnovna banka Banja
Luka. In 1990 it became a separate bank, named Banjalučka banka. Lastly,
on 18 January 2002 it was privatised and subsequently changed its name
to Nova banjalučka banka.

COMPLAINT

The applicant complained that the judgment of
26 November 1998 ordering the release of her “old” foreign-currency
savings had not been enforced. She invoked Article 1 of Protocol No.
1 to the Convention. The application was also communicated by the Court
of its own motion under Article 6 of the Convention.

THE LAW

The applicant obtained a judgment ordering her
bank to release her foreign-currency savings and to pay default interest
and legal costs. On 18 January 2002 the Republika Srpska took over this
debt as it arose from “old” foreign-currency savings (section 20
of the Opening Balance Sheets Act 1998, as amended on 8 January 2002).
However, the actual payment of the debt has been prevented by the Republika
Srpska legislation since 28 May 2002 (the Postponement of Enforcement
Act 2002, the Temporary Postponement of Enforcement Act 2003 and the
Settlement of Domestic Debt Act 2004). The applicant complained about
this situation. Her complaint raises issues under Article 6 of the Convention
and Article 1 of Protocol No. 1 to the Convention.

Article 6, in so far
as relevant, reads as follows:

“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal established
by law.”

Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled
to the peaceful enjoyment of his possessions. No one shall be deprived
of his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of international
law.

The preceding provisions shall not, however,
in any way impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or
penalties.”

A. Article 35 § 2 (b) of the Convention

The following is the relevant part:

“The Court shall not deal with any application
submitted under Article 34 that ... is substantially the same as a matter
that ... has already been submitted to another procedure of international
investigation or settlement and contains no relevant new information.”

1. The parties’ submissions

The Government submitted that proceedings before
the former Human Rights Chamber (“the Chamber”) were “international”
within the meaning of Article 35 § 2 (b) of the Convention and, no
relevant new information having been submitted by the applicant, invited
the Court to declare the present application inadmissible on this ground.
Their main arguments were as follows: (a) the Chamber had been set up
provisionally (pending Bosnia and Herzegovina’s accession to the Council
of Europe and its ratification of the Convention); (b) the Agreement
on Human Rights, pursuant to which the Chamber had been set up, was
an international treaty; (c) eight of the Chamber’s fourteen members
were foreigners; (d) there was no possibility of appeal against a Chamber’s
decision to the Constitutional Court of Bosnia and Herzegovina or to
any other court in Bosnia and Herzegovina; (e) the Chamber’s funding
came almost exclusively from international donors; and (f) the Chamber’s
decisions were forwarded to the Organization for Security and Co-operation
in Europe (OSCE) and the Office of the High Representative (OHR) for
monitoring of compliance.

In their written and oral submissions, the Government
expressly relied on an 1998 opinion of the European Commission for Democracy
through Law (Venice Commission) which had found that the Chamber, on
account of its quasi-international (sui generis) and provisional character, could not be regarded
as a “court of Bosnia and Herzegovina” within the meaning of the
Constitution of Bosnia and Herzegovina (Opinion of the Venice Commission
on the admissibility of appeals against decisions of the Human Rights
Chamber of Bosnia and Herzegovina, adopted in October 1998, CDL-INF(1998)018).

As to the question of enforcement, the Government
submitted, relying on detailed figures, that the Chamber’s decisions
had been mainly implemented although certain required legislative changes
were still ongoing.

The applicant submitted that the Chamber, having
been competent to hear cases only against Bosnia and Herzegovina and
its entities, was not an international “procedure” within the meaning
of Article 35 § 2 (b) of the Convention.

2. The third parties’ submissions pursuant
to Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of
Court

The Venice Commission in its written submissions
to the Court of 15 June 2005 first submitted that the 1995 Dayton Agreement,
clearly an international treaty, was a framework agreement and that
the Annexes thereto, including the Agreement on Human Rights (Annex
6), were intended to provide its substance. The Agreement on Human Rights,
regardless of having been signed by one State only – Bosnia and Herzegovina
– and its constituent entities, was thus also an international treaty.

The Venice Commission continued that, notwithstanding
certain elements which could suggest that the Chamber was an international
body (for example, its composition and the international character of
Annex 6, pursuant to which it was set up), proceedings before the Chamber
could not be considered “international” for the purposes of Article
35 § 2 (b) of the Convention. On the contrary, they should be considered
“domestic” within the meaning of Article 35 § 1 of the Convention.
In the Venice Commission’s view, the decisive feature of the Chamber,
ruling out its international nature, was that the Chamber exercised
its supervision within the national boundaries of Bosnia and Herzegovina
only (its mandate did not concern obligations between States, but obligations
undertaken by Bosnia and Herzegovina and its entities).

The International Committee for Human Rights
(ICHR) maintained that the Agreement on Human Rights (Annex 6) was a
unilateral undertaking of Bosnia and Herzegovina, rather than an international
treaty, because it had not been signed by other States than Bosnia and
Herzegovina (as opposed to the 1995 Dayton Agreement itself and several
other Annexes thereto). Furthermore, it was established practice in
the application of Annex 6 that the Republic of Croatia and Serbia and
Montenegro (the parties to the 1995 Dayton Agreement) had not assumed
any international obligations under that Annex.

The ICHR further submitted that constituent units
of Bosnia and Herzegovina were capable of being parties to the proceedings
before the Chamber and that the salaries and expenses of the Chamber
and its staff were to be borne by Bosnia and Herzegovina (Article III
§ 2 of the Agreement on Human Rights). As to its partly international
composition (eight of the Chamber’s fourteen members were foreigners),
the ICHR submitted that this was deemed to be necessary, at least in
an initial period, in order to reinforce the appearance of its impartiality
and also to train the members appointed from Bosnia and Herzegovina
in the practice and procedure of the Convention.

The ICHR concluded that proceedings before the
Chamber should be considered “domestic” for the purposes of Article
35 § 1 of the Convention.

3. The Court’s assessment

As noted by the European Commission of Human
Rights, the Convention seeks to avoid a plurality of international proceedings
relating to the same cases (see Calcerrada Fornieles and Cabeza Mato v. Spain, no. 17512/90,
Commission decision of 6 July 1992, Decisions and Reports (DR) 73, p. 214,
and Cereceda
Martin v. Spain, no. 16358/90, Commission decision of 12 October
1992, DR 73, p. 120). Under Article 35 § 2 (b) of the Convention the
Court cannot deal with any application which has already been investigated
or is being investigated by an international body.

The Court is required, therefore, to determine
whether the Chamber was or was not an “international” body within
the meaning of Article 35 § 2 (b). In this connection, the Court considers
the legal character of the instrument founding the body to be a logical
starting-point for its assessment. However, it considers the following
factors, concerning as they do the essential nature of the body, to
be determinative of the issue: the body’s composition, its competence,
its place (if any) in an existing legal system and its funding.

In the instant case, the Court notes that the
Chamber was set up pursuant to the Agreement on Human Rights, which
is Annex 6 to the 1995 Dayton Agreement. While it is clear that the
Dayton Agreement and several Annexes thereto, having been signed also
by the Republic of Croatia and by the then Federal Republic of Yugoslavia,
are international treaties, the question is whether those annexes which
were approved or signed by Bosnia and Herzegovina and its entities only
(such as the Constitution of Bosnia and Herzegovina (Annex 4), the Agreement
on Human Rights (Annex 6), and the Agreement on Refugees and Displaced
Persons (Annex 7)) are also international treaties.

The Dayton Agreement contains 11 Articles only,
which mostly set out the obligations for the three Contracting States
to “welcome and endorse” and to “fully respect and promote fulfillment
of the commitments” made in the Annexes thereto. The substance of
the commitments is contained in the Annexes. The Court considers, as
did the Venice Commission and indeed the Government, that the Annexes
to the Dayton Agreement are an integral part of the Agreement and thus
also international treaties.

As to the composition of the former Chamber,
the Court observes that eight of the Chamber’s fourteen members were
foreign nationals (“international members”), were appointed by the
Committee of Ministers of the Council of Europe and were accorded the
same privileges and immunities enjoyed by diplomatic agents under the
Vienna Convention on Diplomatic Relations. It is important that the
Chamber’s international members were not appointed by other two States
Parties to the Dayton Agreement (the Republic of Croatia and Serbia
and Montenegro), but by the Council of Europe, an international organisation.
Indeed, citizens of the Republic of Croatia and Serbia and Montenegro
were expressly precluded from sitting as the Chamber’s members (Article
VII § 2 of the Agreement on Human Rights). It follows that the Chamber,
by its composition, did not resemble international mixed arbitral tribunals
(see, on the contrary, X and X v. Germany, application no. 235/56, Commission decision
of 10 June 1958, Yearbook 2, p. 256). As noted by the ICHR, the appointment
of the foreign members to the former Chamber was motivated by a desire, inter alia,
to reinforce its appearance of impartiality and to bring to the Chamber
knowledge and experience of the Convention and its case-law.

The Court also observes that it was the agreements
of Bosnia and Herzegovina and its entities only (that is, without the
approval of the Republic of Croatia and Serbia and Montenegro) which
extended the mandate of the Chamber until 31 December 2003 (in 2000);
changed the Chamber’s organisation by adding two more panels composed
of members appointed from Bosnia and Herzegovina (in 2003); and terminated
the Chamber’s mandate as of 31 December 2003.

It is also noteworthy that while the Chamber
received strong financial support from a range of bilateral and multilateral
donors, crucial in the post-war years, Bosnia and Herzegovina assumed
the formal obligation to fund the Chamber (Article III § 2 of the Agreement
on Human Rights).

Moreover, and importantly, the Chamber’s mandate
did not concern obligations between States but strictly those undertaken
by Bosnia and Herzegovina and its constituent entities. Pursuant to
Article II § 1 of the Agreement on Human Rights, the Chamber was designed
to assist Bosnia and Herzegovina and the entities in honouring their
obligations under the Convention and various other human-rights treaties.
As pointed out by the Venice Commission, the Chamber’s competence
was that of a “domestic” body.

The Court further notes that no “host agreement”
has been concluded between the Chamber and Bosnia and Herzegovina.

It is true that the Chamber was set up as a transitional
measure, pending Bosnia and Herzegovina’s accession to the Council
of Europe, and that there was no possibility of appeal against a Chamber’s
decision to the Constitutional Court of Bosnia and Herzegovina or to
any other court in Bosnia and Herzegovina. Nevertheless, the Court is
of the opinion that the Chamber constituted a part, albeit a particular
part, of the legal system of Bosnia and Herzegovina: Article VII §
2 of the Agreement on Human Rights provided that the Committee of Ministers
of the Council of Europe should appoint foreign members to the Chamber
pursuant to its Resolution (93) 6. The Committee of Ministers thus presumed
that it was appointing members to a body set up by Bosnia and Herzegovina
“within its internal legal system” (see Resolution (93) 6 in “Relevant
international and domestic law and practice” above). Indeed, the Committee
of Ministers did so having consulted Bosnia and Herzegovina and its
entities (in Resolution (96) 8).

It is also the case that in 1998 the Venice Commission
considered the Chamber not to be an “other court in Bosnia and Herzegovina”
within the meaning of Article 6 § 3 (b) of the Constitution of Bosnia
and Herzegovina. However, as appears from its written submissions to
the Court in this case, its views have evolved since then.

The fact that international organisations, such
as the OSCE, supervise the execution of the Chamber’s decisions is
a factor explained by the post-war context of the establishment of the
Chamber. It does not alter its essentially domestic character.

The Court concludes that while the Chamber was
set up pursuant to an international treaty, the remaining factors noted
above allow it to consider that the applicant’s proceedings before
the Chamber were not “international” within the meaning of Article
35 § 2 (b) of the Convention and, further, that proceedings before
the Chamber should be considered a “domestic” remedy within the
meaning of Article 35 § 1 of the Convention.

The Government’s objection is therefore dismissed.

B. Article 35 § 1 of the Convention

This provision reads as follows:

“The Court may only deal with the matter after
all domestic remedies have been exhausted, according to the generally
recognised rules of international law, and within a period of six months
from the date on which the final decision was taken.”

1. The parties’ submissions

The Government objected that the applicant had
failed to exhaust domestic remedies. Since it was not possible either
simultaneously or consecutively to pursue a case before both bodies,
by submitting her appeal to the Chamber the applicant had forfeited
her right to appeal to the Constitutional Court of Bosnia and Herzegovina
(“the Constitutional Court”; see the Constitutional Court’s decision
no. U 7/98 of 26 February 1999 and the Chamber’s decision no. CH/00/4441
of 6 June 2000).

The applicant maintained that the Chamber was
a domestic court. She was thus not obliged, in her opinion, to give
preference to the Constitutional Court over the Chamber.

2. The third parties’ submissions pursuant
to Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of
Court

The Venice Commission in its written submissions
to the Court of 15 June 2005 submitted that, as in the case of the Agreement
on Human Rights (Annex 6 to the 1995 Dayton Agreement), the Constitution
of Bosnia and Herzegovina (Annex 4 to that Agreement) was an international
treaty. In that regard, the Venice Commission referred to a decision
of the Constitutional Court which had applied the Vienna Convention
on the Law of Treaties5
when interpreting the Constitution of Bosnia and Herzegovina (see the
Constitutional Court’s decision no. U 5/98 I of 30 January 2000, §
15).

As to the Constitutional Court, which was set
up pursuant to the above Constitution, and despite its partly international
composition, the Venice Commission in its written submissions to the
Court of 15 June 2005 considered that it had been devised as a domestic
court and not as some international tribunal6.
In addition, the jurisdiction of the Constitutional Court, like the
jurisdiction of the Chamber, was limited to the territory of Bosnia
and Herzegovina.

The Venice Commission concluded that proceedings
before the Constitutional Court could not be considered “international”
within the meaning of Article 35 § 2 (b) of the Convention. They should
instead be considered “domestic” for the purposes of Article 35
§ 1 of the Convention and should thus be pursued before bringing a
case before the European Court (provided that in the specific case complaints
to the Constitutional Court would be admissible).

The ICHR took the view that the Constitution
of Bosnia and Herzegovina was a unilateral undertaking of Bosnia and
Herzegovina, rather than an international treaty, because the approval
of the Republic of Croatia and of Serbia and Montenegro (the parties
to the 1995 Dayton Agreement) was not required either for its entry
into force or for amendments to it.

Taking into consideration also that the jurisdiction
of the Constitutional Court was the jurisdiction of a constitutional
court in the purest sense, the ICHR concluded that proceedings before
the Constitutional Court should be considered “domestic” for the
purposes of Article 35 § 1 of the Convention.

3. The Court’s assessment

The Court reiterates that an applicant is required
to make normal use of domestic remedies which are effective, sufficient
and accessible. It is also recalled that, in the event of there being
a number of remedies which an individual can pursue, that person is
entitled to choose a remedy which addresses his or her essential grievance
(see Croke
v. Ireland (dec.), no. 33267/96, 15 June 1999). In other words,
when a remedy has been pursued, use of another remedy which has essentially
the same objective is not required (see Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V).

In the present case, the applicant pursued an
appeal before the Chamber. The Court has decided that the appeal was
a “domestic” remedy within the meaning of Article 35 § 1 of the
Convention. The parties did not contest its effectiveness and indeed
there is nothing to indicate that it was an ineffective remedy for the
applicant. That the Chamber’s decision in the instant case has not
been enforced does not render that remedy ineffective: the evidence
is that the Chamber’s decisions were, in general, enforced and, indeed,
that is consistent with the figures provided by the Government in this
connection.

Even assuming that an appeal to the Constitutional
Court could be considered to be an effective domestic remedy in the
present case within the meaning of Article 35 § 1 of the Convention,
for the reasons outlined in detail above (see also the Constitutional
Court’s decision no. AP 288/03 of 17 December 2004), the applicant
was entitled to choose between two effective domestic remedies (see Airey v. Ireland,
judgment of 9 October 1979, Series A no. 32, p. 12, § 23) and her application
cannot be rejected because of that choice.

C. Article 34 of the Convention

The relevant part of Article 34 reads as follows:

“The Court may receive applications from any
person, non-governmental organisation or group of individuals claiming
to be the victim of a violation by one of the High Contracting Parties
of the rights set forth in the Convention or the Protocols thereto...”

The Government also submitted that even if the
applicant could have claimed to be the victim of a violation of the
Convention prior to the entry into force of the Settlement of Domestic
Debt Act 2004 of the Republika Srpska, she could not claim to have been
so thereafter. While the Act in issue implicitly precluded the enforcement
of all judgments ordering the release of “old” foreign-currency
savings, it provided the applicant with an opportunity to receive 1,000
Bosnian markas (approximately EUR 511) in cash in four annual instalments
and the remaining sum in State bonds.

The applicant stated that, since her case concerned
a failure to enforce the judgment of 26 November 1998, the impugned
situation could be rectified only by the full enforcement of that judgment
without delay (as ordered by the Chamber in 2000).

The Court reiterates that, where an applicant
complains of the non-enforcement of a final and enforceable judgment
in his or her favour (as in the present case), the applicant can continue
to claim to be a victim of a breach of the Convention until the relevant
national authorities have acknowledged the breach (either expressly
or in substance) and afforded redress for it (see Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36,
and Voytenko
v. Ukraine, no. 18966/02, § 34, 29 June 2004).

Although in 2000 the Chamber, a competent domestic
body, expressly acknowledged breaches of the Convention and ordered
the Republika Srpska to ensure the full enforcement of the judgment
of 26 November 1998 without further delay, the judgment in issue has
not yet been enforced and the applicant has not yet been afforded any
redress.

This objection of the Government must thus also
be dismissed.

D. Merits

The Government accepted that the enforcement
of the judgment of 26 November 1998 had been prevented by the Republika
Srpska’s legislation since the ratification of the Convention by Bosnia
and Herzegovina on 12 July 2002 (the period within the Court’s jurisdiction ratione temporis)
and that this clearly constituted an interference with the applicant’s
human rights as defined in Article 6 of the Convention and Article 1
of Protocol No. 1 to the Convention.

Nevertheless, taking into consideration that
the public debt of the Republika Srpska was almost as high as its two
annual budgets, the statutory intervention had been necessary. The Government
also submitted that a fair balance had been struck between the interests
of the community and the applicant’s human rights as the following
possibilities had been left open to the applicant: (a) she was entitled
to convert her savings into privatisation coupons pursuant to the Privatisation
of Companies Act 1998 of the Republika Srpska and to utilise those coupons
in the privatisation process or sell them on the secondary market under
certain conditions; and (b) the Settlement of Domestic Debt Act 2004
of the Republika Srpska provided the applicant with the possibility
of receiving 1,000 Bosnian markas (approximately EUR 511) in cash in
four annual instalments and the remaining amount of her “old” foreign-currency
savings in State bonds payable in 10 annual instalments between 2025
and 2034.

The applicant disagreed with the Government.
She submitted that a failure to enforce a judgment could never be justified
given that courts, when taking their decisions, took into consideration
all relevant circumstances.

The applicant further alleged that, as a result
of the failure to enforce the judgment in her case, she had been unable
to pay EUR 15,000 for an eye operation in a Russian clinic, so that
her son had consequently lost his sight.

Lastly, she maintained that the financial difficulties
of Bosnia and Herzegovina were not as serious as the Government suggested.
Indeed, she accused the Government of weak public-sector management
and of being captured by narrow private interests.

E. Conclusion

The Court concludes that the present application
raises questions of law which are sufficiently serious for its determination
to depend on an examination of the merits, the objections raised by
the Government having been dismissed and no other ground for declaring
the application inadmissible having been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the
merits of the case.

Michael O’Boyle Nicolas Bratza
Registrar President

1
Approximately 900,739,593 euros.

2
Approximately 396,198,621 euros.

3
Approximately 51 euros.

4
Approximately 511 euros.

5
The Vienna Convention on the Law of Treaties “applies to treaties
between States” (Article 1 of that Convention).

6
The Venice Commission referred to Article VI § 3 (b) of the Constitution
of Bosnia and Herzegovina: “The Constitutional Court shall also have
appellate jurisdiction over issues under this Constitution arising out
of a judgment of any other court in Bosnia and Herzegovina.”